Stockton v. State , 302 Ga. App. 42 ( 2010 )

690 S.E.2d 623 (2010)

STOCKTON
v.
The STATE.

No. A09A2326.

Court of Appeals of Georgia.

January 13, 2010.

M.V. Booker, for appellant.

Samuel H. Altman, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

SMITH, Presiding Judge.

In this out-of-time appeal, Antonio Stockton appeals from the trial court's order denying his motion to withdraw his plea of guilty to armed robbery and theft by taking.^[1] He contends that he received ineffective assistance of counsel because his lawyer failed to investigate his mental competence before he pled guilty. Before denying his motion, the trial court did not conduct an evidentiary hearing to determine whether Stockton's plea was rendered involuntary because of ineffective assistance of counsel. We therefore vacate the trial court's order denying the motion to withdraw and remand this case to the trial court to hold an evidentiary hearing on Stockton's motion to withdraw his guilty plea. Johnson v. State, 273 Ga.App. 11, 614 S.E.2d 477 (2005).

The State's contention that Stockton's only remedy is to pursue a habeas corpus petition is without merit. The State relies upon cases in which the defendant seeks to appeal from a guilty plea, not an order denying a motion to withdraw a guilty plea. See, e.g., Manion v. State, 228 Ga.App. 270-271, 491 S.E.2d 506 (1997); compare Caine v. State, 266 Ga. 421-422, 467 S.E.2d 570 (1996) (comparing a direct appeal from a guilty plea with a direct appeal from a motion to withdraw a guilty plea); Frost v. State, 286 Ga.App. 694, 649 S.E.2d 878 (2007) (direct appeal after hearing held on motion to withdraw guilty plea).

Judgment vacated and case remanded with direction.

PHIPPS and BERNES, JJ., concur.

NOTES

[1] In Stockton v. State, 298 Ga.App. 84, 86, 679 S.E.2d 109 (2009), this court concluded that Stockton was entitled to an out-of-time appeal from the trial court's order denying his motion to withdraw his guilty plea.